Hopkins v. Barron

• Citation: 6 S.E.2d 96,61 Ga.App. 168
• Decision Date: 30 November 1939
• Docket Number: 27640.
• Parties: HOPKINS v. BARRON.
• Court: United States Court of Appeals (Georgia)

6 S.E.2d 96

61 Ga.App. 168

HOPKINS v. BARRON.

No. 27640.

Court of Appeals of Georgia, Division No. 1.

November 30, 1939

A L. Henson, of Atlanta, for plaintiff in error.

McElreath Scott, Duckworth & DuVall and J. L. Riley, all of Atlanta, for defendant in error.

MacINTYRE Judge.

W. R Hopkins brought this suit for alleged personal injuries against H. H. Barron, who dealt in new and used cars and had a staff of mechanics and salesmen for the purpose of carrying on the business. The petition as amended alleged that the petitioner was employed as night watchman to guard and supervise the place during the night hours and on October 29 1937, at about eleven o'clock P. M., was engaged as night watchman on defendant's premises; that while making his rounds five automobiles drove up on Fair Street immediately in front of the defendant's premises; that certain negroes were boisterous and made sufficient noise and disturbance to attract petitioner's attention; that he thereupon started running in the direction of the noise in an effort to protect defendant's property and to ascertain the cause of the disturbance; that the premises or lot was used to park cars which defendant kept in stock for sale and exchange; that "on the night of the injury the defendant and his employees left a truck parked on said lot. *** During the day previous the employees of the defendant had" done certain described repair work on the truck and "all of the timbers, hardware, irons, and materials which had been cut from the body of the truck were scattered about and near said truck; *** the ground was littered by said parts providing obstruction and entanglements and solid obstructions on the surface of the ground over which any person coming from the watchman's house to Fair Street would have to pass." That defendant failed and refused to erect on or near the lot any light or lights which would illuminate the ground and disclose to any person walking thereon the dangerous character of the ground as above described; that the lights on Fair, Forsyth, and Whitehall Streets (which bounded the lot) were insufficient to illuminate the premises; that petitioner admonished defendant to provide sufficient lights, there being no lights except the 30-watt light in the watchman's house which was wholly insufficient to disclose any obstructions that might be on the surface of the lot; that buildings obstructed the lights from the streets and prevented them from illuminating the ground, nor was there any other light to illuminate the ground around said truck over which the petitioner "ran" to the point where he thought there was trouble, "and that upon running onto and across said debris he tripped and fell, throwing his entire weight upon his left leg and in such a manner that the left bone of his leg was broken just above the ankle;" that petitioner contributed in no manner any negligence and was entirely free from negligence or fault. That the negligence of the defendant was as follows: "(a) In the placing of said debris in the path over which it was necessary for plaintiff to travel in pursuing his duties as night watchman. (b) In failing and refusing to provide proper lighting in and along the path over which your petitioner must travel in carrying out his duties. (c) In allowing mechanics and salesmen in his employ to place said debris and obstruction in and along the pathway of your petitioner." That the defendant was guilty of gross negligence in failing to put lights on the premises after being requested so to do, and this negligence was the direct proximate cause of the injury. The defendant's demurrer to the petition was sustained and the plaintiff excepted.

"Under the law the servant or employee is not required to make any special inspection to see the condition of the place furnished to him, but if, by exercising ordinary care, (he) can discover the condition of it, it is his duty to do so." Payne v. Rivers, 28 Ga.App. 28 (4), 110 S.E. 45, 46. "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself." Code, § 66-303. Under the allegations in the petition, construed most strongly against the plaintiff, he was not exercising ordinary care when he was "running" across the unlighted lot of the defendant and tripped and fell over the debris. The fact that it was dark was obvious, and in the dark it was manifestly dangerous to go running across the lot when, knowing the use to which the lot was put, there might be debris of the character alleged or other obstructions lying around on the ground. The averment in the petition that he was exercising ordinary care and did not contribute any negligence and was entirely free from negligence was not supported by the facts set forth therein. The petition as amended disclosed that the plaintiff was in charge of the lot during the night, and knew the uses to which it was put. His duty was to patrol the grounds and guard it against trespassers at nighttime. It is charged that the premises were dangerous and unsafe without lights, and one of the acts of negligence alleged is a failure to light up the grounds. "The prime gist of the servant's action against the master is...